Of the two contrary cases, Dukes v. Wal-Mart, Inc., 474 F.3d 1214, 1239 (9th Cir. 2007), and In Re Tobacco Litigation, 624 S.E.2d 738, 741-42 (W. Va. 2005), the latter was highly preliminary – almost advisory – and will undoubtedly be subject to much additional jousting in the trial court, and the former was decided only a week or so before Williams, and is subject to reconsideration and/or further appeal.

Due Process limits both punitive damages procedures and the amounts of such awards. Williams, 127 S.Ct. at 1062. The Williams court was not concerned with substantive due process and limited itself to procedural aspects. The procedural ruling, however, was a doozy, an unequivocal holding that Due Process prohibits a defendant from being punished for harm to others. Id. at 1065 (“We did not previously hold explicitly that a jury may not punish for the harm caused others. But we do so hold now”).

That’s bad news for class action advocates, because representative litigation necessarily involves harm to others who are not individually present before the court. While Williams wasn’t itself a class action, it made pretty clear that it was discussing litigation where one plaintiff purported to “represent" others:

[T]he Constitution’s Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties or those whom they directly represent, i.e., injury that it inflicts upon those who are, essentially, strangers to the litigation.

127 S.Ct. at 1063 (emphasis added). Class actions are inherently “represent[ative]” litigation. Their only reason for existence is to adjudicate the claims of persons not formally before the court. If “strangers to the litigation” can’t recover punitives, that pretty well shuts down the logic of class actions in this area.

Further, class actions are often bifurcated (or worse) so that “individual” issues are tried separately. Not so with punitive damages after Williams. The Court held, “the Due Process Clause prohibits a State from punishing an individual without first providing that individual with an opportunity to present every available defense.” Id. (emphasis added). Thus Williams’ conception of Due Process gives defendants the right to “every available defense” before being held liable for punitive damages.

Not only that, but it’s crystal clear that Williams had in mind the sort of individualized defenses that class-action types usually try to hold until “phase II” – and hopefully never if a settlement can be extracted during (or before) a class trial. Williams specifically mentions inherently individualized defenses: that the absent “victim[s]. . .knew that smoking was dangerous or did not rely upon the defendant’s statements.” Id.In general Williams holds that aggregate punitive awards (including those encompassing “nonparties” who are “directly represent[ed] by parties) are necessarily “standardless” and “speculative” in violation of Due Process:

To permit punishment for injuring a nonparty victim would add a near standardless dimension to the punitive damages equation. How many such victims are there? How seriously were they injured? Under what circumstances did injury occur?. . . The jury will be left to speculate. And the fundamental due process concerns to which our punitive damages cases refer – risks of arbitrariness, uncertainty, and lack of notice – will be magnified.

Id. (citations omitted). While a jury may hear evidence about harm to others it “may not go further. . .and use a punitive damages verdict to punish a defendant directly on account of harms it is alleged to have visited on nonparties”. Id. at 1064. Ask not for what the bell tolls, it tolls for punitive damages being assessed through “representative” litigation such as class actions. This is really good stuff. We’ll keep thinking about it.

A further implication of Williams is what does having “an opportunity to present every available defense,” id. at 1063, mean? A lot of things that were either matters of substantive law, or even evidentiary, are now presumptively constitutionalized (precisely the fear of Scalia, et al.). Even in a purely individual action, did the trial court’s arguable misinterpretation of the scope of a state-law defense, deprive the defendant of its “opportunity”? How about exclusion of evidence of the plaintiff’s assumption of the risk? It’s impossible to state any firm answers, but it’s safe to say that a great variety of otherwise mundane trial rulings now come tinged with a constitutional patina when they occur in a case in which the plaintiff is seeking punitive damages.

From now on, we’ll certainly be viewing anything in the trial of cases involving punitive damages context with an eye towards preserving constitutional objections that might not have previously existed. We recommend that other defense counsel do the same.

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About

This blog contains the personal views of the Blogging Team identified below (and of any authors of guest posts) concerning various topics that arise in the defense of pharmaceutical and medical device product liability litigation. Please read the DISCLAIMER about the nature of this blog, and understand that you are accepting its terms, before reading any of the posts here.

Blogging Team

James M. Beck is Counsel resident in the Philadelphia office of Reed Smith. He is the author of, among other things, Drug and Medical Device Product Liability Handbook (2004) (with Anthony Vale). he wrote the seminal law review article on off-label use cited by the Supreme Court in Buckman v. Plaintiffs Legal Committee. He has written more amicus briefs for the Product Liability Advisory Council than anyone else in the history of the organization, and in 2011 won PLAC's highest honor, the John P. Raleigh award. He can be reached at jmbeck@reedsmith.com.

Stephen McConnell has authored articles and chapters on product liability (though nothing as snappy or authoritative as Beck's book) and has tried drug and device cases that managed to evade the pretrial gauntlet. He is a partner in the Philadelphia office of Reed Smith and can be reached at smcconnell@reedsmith.com.

Michelle Hart Yeary is a seasoned products liability litigator who focuses on attempting to bring order to the chaos that is mass torts, concentrating on the practicalities and realities of defending coordinated and multidistrict litigation. She is counsel in the Princeton office of Dechert LLP and can be reached at michelle.yeary@dechert.com.

John J. Sullivan is a products liability and commercial litigator, having authored articles on mass torts and securities litigation and presented on trial advocacy. He is experienced in mass tort litigation, with a particular emphasis on scientific and regulatory issues, as well as having experience in complex commercial, securities class action and corporate governance litigation. He is a partner in the downtown Manhattan and New Jersey offices of Cozen O'Connor and can be reached at jsullivan@cozen.com.

Eric L. Alexander is a partner in Reed Smith’s Washington office. He has spent almost his entire career representing drug and device companies in product liability litigation from discovery through motions, trials, and appeals, usually on the right side of the v. He is particularly interested in medical and proximate cause and the intersection of actual regulatory requirements and the conduct that plaintiffs allege was bad, which covers quite a bit. He can be reached at ealexander@reedsmith.com.

Steven J. Boranian is a partner in Reed Smith’s San Francisco office, where he focuses his practice on representing drug and medical device companies in product liability and other kinds of litigation. He has handled drug and device matters from pre-litigation demands to appeals and all points in between, with particular interests in “mass” proceedings and class actions, to the extent the latter should ever be allowed in the drug and medical device context. He can be reached at sboranian@reedsmith.com.

Rachel B. Weil is counsel in Reed Smith’s Philadelphia office. Except for a brief, misguided trip to the “dark side,” Rachel has spent her whole career defending drug and device manufacturers in product liability litigation and in government actions arising from such litigation. While she laments the single-plaintiff drug cases of her youth, she loves nothing better than a good mass tort. She can be reached at rweil@reedsmith.com
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